Hofstra Labor & Employment Law Journal
Volume 18 | Issue 2
Article 1
2001
Handling Workplace Conflict: Why
Transformative Mediation?
Robert A. Baruch Bush
Maurice A. Deane School of Law at Hofstra University
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Bush, Robert A. Baruch (2001) "Handling Workplace Conflict: Why Transformative Mediation?," Hofstra Labor & Employment Law
Journal: Vol. 18: Iss. 2, Article 1.
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Bush: Handling Workplace Conflict: Why Transformative Mediation?
HOFSTRA LABOR & EMPLOYMENT
LAW JOURNAL
Volume: 18, No. 2
Spring 2001
ARTICLES
HANDLING WORKPLACE CONFLICT: WHY
TRANSFORMATIVE MEDIATION?
Robert A. Baruch Bush*
The several articles in this Symposium' represent a unique and
multifaceted examination of the largest workplace conflict mediation
program in the United States-the United States Postal Service's
("Postal Service") REDRESS Tm Program. Begun on a pilot basis in 1994
as part of the settlement of a class-action discrimination lawsuit,
REDRESST was subsequently expanded to a nationwide program for
mediation of discrimination claims, available to all of the Postal
Service's over 800,000 employees. However, it is not only the size of
the REDRESSTM Program that makes it a remarkable development in the
field of workplace conflict resolution-and the field of mediation
generally. Equally significant is the fact that the Postal Service decided
to employ a specific model of mediation within the program, called
* Harry H. Rains Distinguished Professor of Arbitration and Alternative Dispute Resolution
Law, Hofstra University School of Law. Fellow, Institute for the Study of Conflict Transformation.
1. This Symposium was inspired by two lectures delivered at Hofstra University School of
Law in the fail of 2000, one by Cynthia J. Hallberlin as the Rains Distinguished Lecturer and one by
Dr. Joseph P. Folger as part of a symposium on transformative mediation co-sponsored by the Law
School and the Institute for the Study of Conflict Transformation. The author thanks the editors for
their dedication in bringing all the articles together, and also thanks the various authors for their
individual contributions.
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HofstraLabor & Employment Law Journal
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"transformative mediation."
This model, first articulated as such by myself and Dr. Joseph P.
Folger in 1994, focuses on the capacity of the mediation process to do
more than simply produce settlements. We argue that mediation, if
practiced in certain ways, can help parties change the quality of their
interaction from negative and destructive to positive and constructive, in
the very midst of conflict, as they explore issues and possibilities for
resolution. It was this potential that attracted the Postal Service's
interest, because they perceived a need to change the "workplace
conflict culture" itself in the organization, not merely to settle
complaints. The resulting collaboration between the Postal Service, our
colleagues, and ourselves3 was an extraordinary exercise in translating
theory into practice, with powerful impacts on the life of an organization
and thousands of its members. This Symposium examines those impacts
from multiple points of view, and is thus an important contribution to the
developing literature on both workplace mediation and the
transformative model. To introduce the Symposium, these comments
offer a brief analysis of why the Postal Service chose to employ the
transformative model of mediation specifically.
Models of mediation practice can be distinguished in a number of
ways, including: how they interpret conflict as a phenomenon; how they
frame the mediator's goals and define success in mediation; and how
they picture appropriate and inappropriate mediator practices. On these
factors, two primary models of practice can be identified in the field
today: the transformative model and the transactional model.4
The
transactional
model
takes
an
essentially
psychological/economic view of human conflict. According to this
2. See ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION:
RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION 1994.
3. The two colleagues who worked most closely with us in developing the mediation training
model used in the Postal Service's REDRESS TM Program were Dorothy J. Della Noce and Sally G.
Pope. Many other colleagues joined us in actually providing the training to REDRESSTM mediators,
4. The identification of these two primary models is common in the field, although the
specific labels differ. See BUSH & FOLGER, supra note 2; DEBORAH M. KOLB, WHEN TALK
WORKS: PROFILES OF MEDIATORS (1994); KENNETH J. KRESSEL & DEAN G. PRUrrr ET AL.,
MEDIATION RESEARCH: THE PROCESS AND EFFECTIVENESS OF THIRD-PARTY INTERVENTION 1989.
The term "transactional" is used to reference a single overarching theoretical framework that is
given various names by various scholars. See, e.g., BUSH & FOLGER, supra note 2 (referring to this
as the "problem-solving" orientation); KOLB, supra note 2 (referring to the "settlement" frame). See
generally Linda L. Putnam, Challenging the Assumptions of TraditionalApproaches to Negotiation,
10 NEGOT. J. 337 (1994) (referring to "transactional exchange"). The suggestion to describe the
second primary model of mediation as "transactional" was the product of conversations with
Dorothy Della Noce.
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369
model, a conflict represents a problem in satisfying the parties'
incompatible needs and interests, the mediator's goal is to generate an
agreement that solves tangible problems on fair and realistic terms, and
good practice is a matter of issue identification, option creation, and
effective persuasion to "close the deal." In this model, there is heavy
reliance on mediator initiative and direction, because both are useful in
generating settlement. This is a very popular model of practice, in one
variation or another.
The transformative model, by contrast, takes an essentially
social/communicative view of human conflict.6 According to this model,
a conflict represents first and foremost a crisis in some human
interaction-a crisis with a common and predictable character.
Specifically, the occurrence of conflict tends to destabilize parties'
experience of both self and other, so that each party feels both more
vulnerable and more self-absorbed than they did before the conflict.
Further, these negative attitudes often feed into each other on all sides, in
a vicious circle that intensifies each party's sense of weakness and
self-absorption. As a result, the interaction between the parties quickly
degenerates and assumes a mutually destructive, alienating, and
dehumanizing character. For most people, according to the
transformative theory, being caught in this kind of destructive
interaction is the most significant negative impact of conflict.
However, the transformative model posits that, despite conflict's
natural destabilizing impacts on interaction, people have the capacity to
regain their footing and shift back to a restored sense of
in self (the empowerment shift) and
strength/confidence
openness/responsiveness to other (the recognition shift). Moreover, these
positive moves also feed into each other on all sides, and the interaction
can therefore regenerate and assume a constructive, connecting, and
humanizing character. The model assumes that this transformation of the
interaction itself is what matters most to parties in conflict-even more
than settlement on favorable terms. Therefore the model defines the
mediator's goal as helping the parties to make empowerment and
recognition shifts, and thus to change their interaction from destructive
to constructive, as they explore specific disputed issues. Success is
5. For a discussion regarding the characteristics and popularity of the transactional model,
see BUSH & FOLGER, supra note 2, at 55-77.
6. The summary given here is based on BUSH & FOLGER, supra note 2, and on other
(unpublished) materials developed for seminars and workshops by the Institute for the Study of
Conflict Transformation.
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measured, in transformative mediation, not by settlement but by party
shifts toward strength, responsiveness and constructive interaction.
Effective practice is focused on supporting empowerment and
recognition shifts, by allowing and encouraging party deliberation and
decision-making and inter-party perspective-taking in various ways.
All this summarizes the theory of the transformative model. It took
the vision of the Postal Service's Law Department, and in particular its
former Alternative Dispute Resolution Counsel Cynthia J. Hallberlin, to
connect this theory with the reality of the needs of a major employernot simply to settle Equal Employment Opportunity claims but to begin
to change the "workplace conflict culture" of the organization.
Hallberlin saw transformative mediation as a tool to change the way
managers and workers were interacting, not only in the conflicts they
brought to mediation, but in the workplace thereafter. She and others felt
that if employees experienced "voice and choice"-Postal Service
shorthand for empowerment and recognition-in REDRESSTM
mediation, this would help them communicate and interact
constructively in the workplace; while the potential for these valuable
"upstream effects" would be lost if a transactional mediation model were
used.
Along with her colleagues Karen Intrater, Traci Gann, Kim Brown,
and Kevin Hagan of the Postal Service Law Department (and supported
by former General Counsel Mary Elcano), Hallberlin realized that
settlement-oriented mediation might "close cases" expeditiously, but
still leave the parties stuck in destructive, alienated interaction as they
returned to the workplace. The expected consequences might include
continued conflict, lost productivity, poor morale, and worse. Using
transformative mediation created the potential to regenerate constructive
interaction, so that parties could not only resolve specific issues but
regain the capacity to work together effectively. Managers and workers
could leave behind the shaken confidence in themselves and hostility to
one another that their conflicts had generated, and move forward
together productively.
This vision of the REDRESSTM Program's creators took the theory
of transformative mediation a giant step closer to the reality of
workplace conflict. When they "rolled out" the program nationwide in
1998-training roughly 3,000 mediators in the transformative model and
offering all Postal Service employees access to the program-theory and
reality met face to face. The subsequent history of REDRESS TM has
been a challenging, exciting, and extremely productive chapter in the
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Bush: Handling Workplace Conflict: Why Transformative Mediation?
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Introduction to Symposium
development of the mediation field. The articles in this Symposium
capture a good deal of that history and provide several illuminating
perspectives on it.
The first article, by Ms. Hallberlin herself, describes the genesis of
the REDRESS TM Program. She describes how the lessons she learned as
a litigator for the Postal Service convinced her of the need for greater
use of mediation in handling discrimination claims. She also explains
why the transformative model seemed best suited to the goals she and
her colleagues were aiming for in the REDRESS TM Program. Hallberlin
then gives a short sketch of the rapid growth and development of the
program, and its documented success. In this account, she emphasizes
the importance of the choices that were made about how to measure
success, including the use of some novel research methods and
measures. She also highlights some of the major challenges she and her
colleagues encountered along their way to persuading the Postal
Service's top management of the value of REDRESSTM mediation.
Hallberlin's article is a unique account of the establishment and
development of this unique program.
The second article, by my colleague Dr. Joseph Folger, takes a step
up to the theoretical level, to explain the challenges of documenting the
"transformative impacts" of REDRESS TM mediation. He offers a brief
history of the development of "qualitative" research methods in the
social sciences-by contrast to the "quantitative" methods usually used
to study the mediation process-and argues that measuring
transformative impacts like empowerment and recognition necessitates
the use of qualitative research tools. He also explains how both the
transformative model and the qualitative methods suited to study it are
based on the same, ideologically-based, premises about human behavior,
premises that differ significantly from those underlying other mediation
models and research methods. Folger thus reminds us of the primary
significance of ideology-values and beliefs-in both conflict
intervention and social science, a theoretical insight that remains critical
to bear in mind as theory is carried into practice.
The next two articles are good examples of the type of qualitative
research needed to document the effects of the transformative model,
whether in the REDRESS TM program or elsewhere. The first, by Tina
Nabatchi and Lisa Bingham, is a "process evaluation" study using
coding methodology to interpret responses to open-ended survey
questions. The survey was directed to Postal Service employees ("ADR
Specialists") who serve as coordinators for the REDRESST Program,
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one of whose jobs is to choose which mediators to employ, after
observing mediators and assessing 'their effectiveness in using the
transformative model. The ultimate aim of the study was to determine,
by coding and interpreting the ADR Specialists' responses, whether
REDRESS Tm mediators are in fact employing the transformative model
as intended. This "qualitative" data about what is actually occurring in
mediation sessions is crucial to assessing whether the success
documented by quantitative studies of the REDRESSTm Program7 can
fairly be linked to the use of a transformative model of practice. The
study concludes that the Specialists' answers provide some initial
evidence that REDRESSTM mediators are in fact using the
transformative model as intended, since the ADR Specialists monitoring
them understand the model well and are probably selecting mediators
who adhere to it.
The next article, by Joseph Folger, James Antes and Dorothy Della
Noce, reports on a second qualitative study of the REDRESSTMI
Program. That study used focus-group interviews to generate thirty-four
"case studies" of actual mediations and then subjected the cases to
thematic analysis to determine whether "transformative effects" are
evident in the mediations. 8 The interview methodology was used, rather
than direct observation, because of confidentiality limits followed by the
Postal Service. Data analysis was inductive, looking across the range of
the cases for emergent patterns in the effects of the mediation on the
parties' interaction. The main aim of the study was to determine whether
the emergent patterns or themes reflected "transformative effects"either empowerment shifts or recognition shifts of various kinds by the
parties. The study identifies eight types of effects as emergent from the
cases, and most of them do involve positive shifts in the way the parties
view themselves and each other, and in the way they communicate with
each other in the mediation. This study thus provides evidence that the
use of the transformative model in REDRESSTm is working to change
the quality of interaction between parties to workplace conflict in the
Postal Service.
Taken together, the two studies included in this Symposium
provide evidence that the mediation being done in the REDRESSTm
Program is indeed following the transformative model, and that using
this model of mediation is helping parties to make positive changes in
7. Those studies are referenced and described in the articles in this Symposium by
Hallberlin, Nabatchi, and Bingham, and Intrater and Gann.
8. Only sixteen of the actual cases are reported in the article.
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the quality of their interaction, as they address disputed issues together.
Read together with previous studies of REDRESSTM mediation 9 -which
document high levels of party satisfaction and tie that satisfaction to
parties' valuing of the opportunities mediation offered for
self-determination and self-expression-the studies included here
support the tentative conclusion that transformative mediation is actually
being practiced in the REDRESSTM Program and that it is having the
kinds of impacts that the theory would predict.
The final article in the Symposium, by Karen Intrater and Traci
Gann, offers a glimpse of where the REDRESSTM model is headed. It
describes the steps taken to extend REDRESSTM mediation to cases that
have proceeded to the stage of formal complaints, with lawyers involved
on both sides. Having seen the impacts of mediation in cases at earlier
stages, the Postal Service decided to make it available in these cases as
well, through what they call the REDRESSTM II Program. Perhaps the
most interesting part of this development is the enlistment of lawyers in
utilization of transformative mediation, through seminars on advocacy in
mediation for Postal Service lawyers, creation of a website for
complainants' counsel, and organizational incentives for openness to the
use of mediation in cases at the formal complaint stage. While the
progress of this new program has yet to be studied, the initiative
demonstrates the Postal Service's strong commitment to taking full
advantage of the transformative potential of the mediation process.
In sum, this Symposium offers a unique and varied look at a
program that represents a highly significant development in the
mediation of workplace conflict, as well as a truly remarkable effort to
carry a new theory of conflict intervention into the concrete world of
practice. The articles that follow include the perspectives of program
designers and administrators, conflict theorists, and social science
researchers. The result is a rich and provocative brew that should interest
all those involved in workplace conflict issues and in issues of mediation
theory and practice.
9. See supranote 7 and accompanying text.
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